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COPYRIGHT 2007 Stanford Law School
INTRODUCTION
I. BUSH V. GORE'S FAILURE TO IGNITE ELECTION ADMINISTRATION REFORM THROUGH LITIGATION II. THE RISE OF PARTISAN ELECTION ADMINISTRATION LAWS AND THE TROUBLING PUBLIC CONFIDENCE GAP III. MISLEARNING THE LESSONS OF BUSH V. GORE: THE SUPREME COURT'S POOR RESPONSE IN PURCELL V. GONZALEZ TO THE RISE OF ELECTION LAW AS A POLITICAL STRATEGY A. The Decision to Quickly Issue an Opinion in the Case B. The Court's Endorsement of a Wholly Unsupported Empirical Claim that Threatens Equal Protection Rights in Election Administration Cases C. The Court's Unnecessarily Broad Discouragement of Pre-Election Litigation D. The Ramifications CONCLUSION
INTRODUCTION
When the United States Supreme Court decided Bush v. Gore, (1) ending the controversial recount of presidential votes in Florida and handing the contested 2000 election to George W. Bush over Al Gore, some election law scholars told a "lemonade from lemons" story: (2) It is true there was much to criticize about the Supreme Court's decision to take the case, its equal protection rationale, and its controversial remedial decision to end the recount rather than remand for a recount complying with (newly articulated) equal protection standards. (3) But the opinion could usher in an era when courts would use the equal protection clause as a tool to fix some fundamental inequalities in the "nuts and bolts" of our country's hyper-decentralized election administration system. (4) These scholars stood opposed to those who saw the case--especially given its language "limiting" its precedential reach (5)--as a "one-day-only" ticket to assure the choice of Bush over Gore for President (6) and to another group of scholars who saw it as an appropriate resolution of the case, (7) perhaps avoiding a constitutional crisis. (8)
Moreover, some scholars hoped the Florida controversy culminating in Bush v. Gore would make lemonade indirectly as well: the attention generated by the Florida debacle--particularly attention directed to problems with election machinery and partisan discretion over the counting of votes--would spur state and federal legislative action to fix the problems. One especially important problem is the conflict of interest created when partisan election officials oversee elections in which their party, or even they personally, has a stake in the outcome. (9)
Now, a little over six years later, Bush v. Gore is dead. The death did not come in the usual way that Supreme Court cases die, through outright or sub silentio overruling in a later case. Indeed, no Court opinion--majority, concurrence, or dissent--has cited the opinion since it was decided. (10) But election law developments in the relatively short time since Bush v. Gore show that conservative federal circuit court judges so far have been able to resist the "lemonadization" of Bush v. Gore. Worse, the Supreme Court's recent opinion in Purcell v. Gonzalez, (11) allowing Arizona to implement (at least temporarily) its controversial voter identification law, (12) shows that the Court itself has not understood the problems it caused with its Bush v. Gore opinion. The Court's decision to quickly issue an opinion in Purcell, the casual empiricism of its unanimous opinion, and its discouragement of pre-election litigation all are exceedingly troublesome.
By stating Bush v. Gore is "dead," I am not making the claim that the Supreme Court will never rely on the case as precedent in an election administration dispute. I mean instead that the promise of election reform inspired by the case is now dead. (13) Indeed, a case could come along some day reviving Bush v. Gore as precedent. (14) Perhaps it is better to think of the case as dormant as a constitutional precedent. My main point is that we should abandon any hope created by the case that the judiciary would serve as an engine of election administration reform.
Bush v. Gore's failure has been not just a failure in the courts. Legislative fixes to problems of election administration have fared no better, except in the area of voting technology. The good news is that changes in voting technology, subsidized by the federal government, mean that many fewer votes are now "lost" due to inadequate vote counting machinery. (15) But the rest of the news is bad. States have not learned what is arguably the primary lesson of Bush v. Gore: partisan officials should not run elections because of the obvious self-interest problem. Indeed, election administration has become more, rather than less, politicized. (16) State legislatures have not searched for an honest broker to design and implement fair and impartial electoral rules. Many Democrats appear concerned only about problems of voter "access," while many Republicans appear to care only about voter fraud or "ballot integrity." This divide has played out in a number of areas, most importantly in the enactment by state legislatures of voter identification laws supported almost exclusively by Republicans and opposed almost exclusively by Democrats.
The U.S. Election Assistance Commission (EAC), formed by Congress as part of the Help America Vote Act (HAVA) (17) to fix the problems made apparent by the 2000 Florida debacle, has so far proven ineffective and now appears in danger of becoming a new site for partisan stalemate over election reform. Even given the EAC's ineffectiveness thus far, the National Association of Secretaries of State (NASS), the main body of (mostly partisan and elected) state chief elections officers, has not backed off its resolution calling for the EAC to be disbanded. What little good the EAC can accomplish is being undermined by state officials' need to protect their turf and by lack of funding from Congress.
Unfortunately, the story is even worse than this description. Bush v. Gore's main legacy has been to increase the amount of election-related litigation. As election law has become a political strategy, it threatens to further undermine public confidence in the electoral process. No lemonade, only lemons.
Part I of this Article looks at why the election reform litigation strategy relying on Bush v. Gore appears to have failed by examining the Ninth Circuit's California recall litigation and the Sixth Circuit's punch card litigation. Although some lower court judges still may look to the Bush v. Gore precedent as a means to election reform, the en banc process in the federal appellate courts has thus far stymied that effort.
Part II considers state and federal legislative and administrative responses to the 2000 Florida election debacle and Bush v. Gore. Although vote counting technology has improved, states have made little progress otherwise in fixing their election administration problems. Even within the voting technology arena, well-publicized problems, such as those in Denver and in Florida's 13th congressional district, continue to send the public the message that election "meltdown" is a real possibility. Worse, election administration reform has taken on an increasingly partisan cast. The debate over good election practices is taking place in the absence of good evidence, raising the possibility that some laws, most prominently new laws requiring voters to show identification at the polls, are being enacted for partisan advantage rather than to remedy any real problem. The partisanship, as well as continuing voting technology snafus, appear to be contributing to a troubling party and race divide in public confidence about the election process.
Part III returns to the failure of the courts in the wake of Bush v. Gore. It begins by noting that the rise in election litigation that this country witnessed after Bush v. Gore continues unabated. It then uses the Purcell case to show that the Court has failed to learn the lessons of Bush v. Gore. The Court's decision to issue a quick opinion, its casual empiricism, and its discouragement of pre-election litigation demonstrate that all members of the Court--both liberal and conservative Justices--are insufficiently sensitive to the kind of trouble their election law opinions may cause.
The Court in Purcell unanimously endorsed an empirically unsupported view that voters "feel" disenfranchised when some amount of voter fraud takes place in elections, and that this "feeling" must be balanced against the interests of voters who may be literally disenfranchised by voter identification laws. The opinion is likely to add more confusion, and less equality, to a politically sensitive area of the law and encourage the wave of partisan election administration battles. Purcell also shows that the Court failed to learn another lesson from Bush v. Gore: because post-election litigation threatens to undermine voter confidence in the electoral process and potentially to undermine confidence in the judiciary as well, courts should encourage litigation before elections. But the Purcell Court has already sent the wrong signal on timing, discouraging lower courts from resolving election disputes before, rather than after, an election. This holding may have the ultimate effect of moderately reducing the total amount of election litigation, but only at the expense of eliminating cases for which the only viable remedy may come through pre-election judicial review.
Part III concludes with an examination of Judge Posner's troubling opinion in the recent challenge to Indiana's voter identification law, Crawford v. Marion County Election Board, (18) and what that opinion and the dissent by Judge Evans (and Judge Wood's dissent from denial of rehearing en banc) suggest about how other courts will handle future election administration litigation.
The death of Bush v. Gore was not unexpected, but its early demise is still something to be mourned.
I. BUSH v. GORE'S FAILURE TO IGNITE ELECTION ADMINISTRATION REFORM THROUGH LITIGATION
Briefly, (19) the Supreme Court in Bush v. Gore voted 5-4 to end the recount ordered by the Florida Supreme Court in the 2000 election contest brought by Al Gore to overturn a narrow victory in Florida by George W. Bush. (20) Seven of the Justices on the Court saw equal protection problems with the Florida Supreme Court's order mandating a statewide manual recount of "undervotes," that is, ballots which were classified by vote counting machines as not including any vote for President. (21) The U.S. Supreme Court flagged a number of problems with the Florida court-ordered recount, perhaps most importantly the lack of uniform standards for judging when a ballot classified as an undervote by a vote counting machine should be counted in a manual recount as a valid ballot for one of the candidates (the "dimpled chad" problem). (22)
Two of the seven Justices recognizing equal protection issues, Justices Breyer and Souter, would have remanded the case back to the Florida courts for a recount using uniform standards. (23) The remaining five voted to end the recount, thereby awarding Florida's electoral votes and the presidency to George W. Bush, on grounds that prolonging the counting would deprive Florida of the chance to have its electoral votes counted without challenge in Congress under the Electoral Count Act. (24) Of the five Justices recognizing an equal protection issue and rejecting remand, three (Chief Justice Rehnquist and Justices Scalia and Thomas) also endorsed an alternative rationale for decision: the Florida Supreme Court's recount order made "new law" for the counting of votes for presidential electors, thereby depriving the Florida legislature of its exclusive power to set the rules for choosing presidential electors granted to it by Article II of the U.S. Constitution. (25)
Bush v. Gore's equal protection holding relied upon Reynolds v. Sims, (26) one of the early one person, one vote cases, and Harper v. Virginia State Board of Elections, (27) a case holding the use of a poll tax unconstitutional, to strike down the Florida court-ordered recount as an equal protection violation. The Court held that the recount standards, through "arbitrary and disparate treatment," impermissibly "valu[ed] one person's vote over that of another." (28) The Court limited its holding, however, with some important language: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." (29)
Much ink has been spilled on the question whether the Court's equal protection rationale was a logical extension of or a break from existing precedent. (30) The subtext of this debate, of course, was whether the Court was consciously or subconsciously making a political decision (with conservatives on the Court backing the legal theories benefiting the Republican candidate and liberals on Court backing the theories benefiting the Democratic candidate) as opposed to a legal one. (31) Part of that debate too concerned whether Bush v. Gore itself would serve as valid precedent to bring greater equality to the administration of elections, a debate that continues to this day. (32) Perhaps believing in the civilizing effect of hypocrisy, (33) some scholars predicted that the Court would eventually endorse the use of Bush v. Gore as precedent to bring greater equality to the nuts and bolts of election administration. Thus, in a New York Times op-ed written just two days after the Court's decision, Sam Issacharoff wrote that the Court has "asserted a new constitutional requirement: to avoid disparate and unfair treatment of voters. And this obligation obviously cannot be limited to the recount process alone.... The court's new standard may create a more robust constitutional examination of voting practices." (34) Steve Mulroy expanded on this point in a law review article, asserting that, while liberals may have been disappointed with the result in Bush v. Gore, its broadly written equal protection holding meant it was possible to make "lemonade from lemons." (35)
My own view in 2001 was "far less sanguine" (36) but not quite as dire as those reading the case as a "one-day-only ticket." Though I believed that the Court would "ultimately limit Bush v. Gore to its facts," (37) I also thought that "[1]ower courts will first apply Bush v. Gore as precedent to cases coming before [them] ... [s]o there is at least a window of time in which the case may serve as valid precedent." (38) I further thought that lower courts would view Bush v. Gore in Rashomonic fashion, (39) with liberal judges embracing a more expansive equal protection reading of Bush v. Gore and conservatives embracing a more restrictive reading of the case--returning liberal judges to the more familiar position of pushing for an expansion of voting rights through equal protection and conservative judges resisting such expansion. In that window of time, I believed that public interest litigants appearing before sympathetic judges could use the logic of the case to make conditions fairer for voters who, because of intentional election administrator choice or mismanagement, would be much less likely to be able to cast a valid vote than other voters in the jurisdiction.
Indeed, at first some lower courts played this enabling role by reading Bush v. Gore to require greater equality in the administration of elections. (40) Sometimes the threat of litigation was enough: to avoid a probable adverse judgment the California Secretary of State settled litigation brought by Common Cause to bar use of punch card voting machines. (41) But that initial success has fizzled, at least as evidenced by the "punch card" cases. As these cases reached the en banc process in circuit courts, conservative judges have blocked Bush v. Gore's lemonadization.
One of the most notable facts emerging from Florida in 2000 was that punch card voting systems were much less reliable than other voting systems, such as systems in which voters used pencils to mark ballots which were then optically scanned. (42) Challenges to punch card voting systems seemed the most logical follow-on litigation to Bush v. Gore, and such challenges should have presented an easy case for plaintiffs if one took Bush v. Gore's equal protection holding seriously:
[T]here is little question that the use of different voting systems with different error rates treats voters differently and makes it much less likely that voters in punch card districts will cast votes that count.... Under strict scrutiny, this disparate treatment in the counting of votes appears just as "dilutive" of the right to vote and just as "arbitrary" as the different methods of recounting votes struck down in Bush v. Gore. There is no compelling interest for the different treatment; a decision about resource allocation by localities should not be able to trump a "fundamental right." (43)
However, in the two circuits in which the punch card issue has reached the federal circuit courts--first the Ninth, then the Sixth--conservative en banc panels have ended such efforts, though without directly ruling on the Bush v. Gore question. The liberal-conservative split we now see over how to read Bush v. Gore's equal protection holding echoes the split that first arose, and was quite robust, in 2000 over the courts' handling of the controversy. (44)
Consider the Ninth Circuit litigation first. (45) When the parties settled the California punch card litigation in 2002, no one expected that a statewide election would again take place in California using punch card ballots; the next scheduled election was March 2004, the date by which the machines would be decertified. Once the unprecedented effort to recall California Governor Gray Davis qualified for the ballot in a special election in October 2003, some questioned whether it was constitutional for the vote to take place using punch card voting machines in some, but not all, California counties.
The ACLU, on behalf of a coalition of voting rights organizations, filed suit in federal court arguing that the selective use of punch card voting machines violated both the Equal Protection Clause of the United States Constitution and section 2 of the Voting Rights Act. (46) The district court denied the ACLU's request for a preliminary injunction, holding that Bush v. Gore mandated only rational basis review of such challenges and that the use of punch cards passed rational basis review. (47)
On September 15th, 2003, less than a month before the election, a three-judge panel of the Ninth Circuit made up of three liberal judges reversed the district court. The court characterized the equal protection issue as a "classic voting rights equal protection claim": "the weight given to votes in non-punchcard counties is greater than the weight given to votes in punchcard counties because a higher proportion of the votes from punchcard counties are thrown out.... [T]he effect ... is to discriminate on the basis of geographic residence." (48)
The court characterized the plaintiffs' claim as "almost precisely the same issue as the Court considered in Bush, that is, whether unequal methods of counting votes among counties constitutes a violation of the Equal Protection Clause." (49) The court stated:
Like the Supreme Court in Bush, "[t]he question before [us] is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections." Rather, like the Supreme Court in Bush, we face a situation in which the United States Constitution requires "some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied." (50)
After a lengthy review of the evidence, the court concluded that the use of punch card voting in the recall election failed to meet even rational basis scrutiny. Finally, the panel called California's interest in having the election held within the timeframe set by the California Constitution "weak." (51)
A majority of Ninth Circuit judges voted to have a larger eleven-member (en banc) panel rehear the case, and on September 23, just a few weeks before the election, the en banc panel--made up of more conservative judges than the original panel (52)--reversed the original panel decision in a brief opinion. (53) Its entire analysis of the equal protection issue was as follows:
We have not previously had occasion to consider the precise equal protection claim raised here. That a panel of this court unanimously concluded the claim had merit provides evidence that the argument is one over which reasonable jurists may differ. In Bush v. Gore, the leading case on disputed elections, the court specifically noted: "The question before the court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections." We conclude the district court did not abuse its discretion in holding that the plaintiffs have not established a clear probability of success on the merits of their equal protection claim. (54)
Although the en banc panel remarked that plaintiffs...
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